Court of Appeals of Missouri, Western District, Third Division
JENNIFER L. COX, Respondent,
WENDELL D. COX, Appellant.
from the Circuit Court of Cole County, Missouri The Honorable
Daniel Richard Green, Judge
Before: Alok Ahuja, P.J., Victor C. Howard, and James Edward
EDWARD WELSH, JUDGE
D. Cox ("Father") appeals the circuit court's
judgment dissolving his marriage to Jennifer L. Cox
("Mother"). Specifically, he contests the
court's decision to adopt a parenting plan that separates
the parties' three children for prolonged periods of
time. We affirm.
of 2015, the circuit court held a hearing on Mother's
petition for dissolution of marriage. Viewing the evidence in
the light most favorable to the judgment,  the evidence
showed that the parties were married on August 27, 1994, and
separated around the time that Mother filed her petition in
July 2014. The parties' three children, Zachary, Hadley,
and Sophia, were ages 15, 5, and 3, respectively, at the time
of the dissolution decree. Prior to the parties'
separation, the children lived with Mother and Father at the
family home in Tipton. After filing her petition, Mother
moved to Sikeston (about five hours away from Tipton), where
her extended family lives and where she had obtained a job.
August 2014, the circuit court held a hearing on the
parties' motions for temporary custody and ordered that
Sophia would reside primarily with Mother, and the boys,
Hadley and Zachary, would reside primarily with Father. The
temporary order also evidently provided for specific periods of
temporary custody for each parent. The court ordered no child
support. The temporary order remained in place until the
dissolution hearing on June 9, 2015. The parties testified at
the dissolution hearing that they did not strictly follow the
court's temporary order but, instead, allowed the
children to spend more time together than what was ordered.
parties submitted proposed parenting plans at trial. Mother
proposed that Zachary continue to reside with Father in
Tipton and for Hadley and Sophia to reside with her. Mother
testified that Father is a good parent and that his work
schedule allows him flexibility in parenting the children.
She believed, however, that the two youngest children need to
live together and that they need to live with her due to
their young ages. Mother told the court that Sophia often
asks about Hadley and about when she will see him again.
Mother acknowledged that Zachary (who was about to enter high
school) wanted to continue living Tipton, where he is
involved in sports and gets good grades, and she agreed that
that would be best for him.
proposed parenting plan called for all three children to
reside with him based on his belief that the siblings need to
be together. He pointed to Zachary's testimony that being
separated from Sophia has been difficult and that the younger
children look up to him. Father testified that he has
concerns about Mother's judgment and the impact of her
life choices on the children. He noted that Mother is
involved in a relationship with Matthew Vaughn (her high
school boyfriend), who is incarcerated on a drug charge at
the Tipton Correctional Center. Father also complained that
Mother has not obtained treatment or medication for her
depression, with which she was diagnosed after undergoing a
psychological evaluation at Father's behest.
circuit court rejected both parties' parenting plans and
adopted its own. After making specific findings as to the
statutorily required factors, the court awarded the parties
"joint legal and physical custody" of the three
children. The court's Parenting Plan called for Sophia to
have extended parenting time with Mother and for Hadley and
Zachary to have extended parenting time with Father, with
specific periods of custody of all the children to each
parent. In short, the children's living arrangements
would be the same as the arrangement with which they had
lived for the past year. The court rejected both parties'
Form 14s and declined to award child support.
sole point on appeal,  Father argues that the circuit court erred
in "splitting the custody of the children" by
awarding "residential custody" of Sophia to Mother
and "residential custody" of Zachary and Hadley to
Father, "because there is no substantial weight"
(sic) to support the ruling, "the weight of the evidence
does not demonstrate the existence of exceptional
circumstances warranting separating the children, " and
"splitting up the children is contrary to the
children's best interest, " in that "the
children have lived together for most of their lives, have
bonds with each other, miss each other, the parents live five
hours apart, [and] Father is a good parent."
we can address the issues raised, we must address the
nomenclature employed in this point relied on. First, the
court did not award any party "residential custody"
of any child. The court awarded joint custody of the children
to the parents and devised its own parenting plan. This Court
has addressed the necessity of using statutory language on
numerous occasions. See, e.g., Loumiet v. Loumiet,
103 S.W.3d 332, 336-38 (Mo. App. 2003) (holding that, despite
tendency of courts and lawyers to use such improper terms as
"primary residential custody" and "primary
physical custody" when "joint physical
custody" was awarded, the only types of custody provided
for in section 452.375.1(1) are "joint legal, "
"sole legal, " "joint physical, " or
"sole physical" or "any combination
thereof"); see also Robertson v. Robertson, 228
S.W.3d 624, 625 n.1 (Mo. App. 2007); Aurich v.
Aurich, 110 S.W.3d 907, 912 (Mo. App. 2003). Recently,
the Eastern District of this Court reiterated: "For over
ten years, our appellate courts have, without exception,
sternly admonished the use of 'primary physical
custody.'" Morgan v. Morgan, 497 S.W.3d
359, 366 (Mo. App. 2016). "'[C]ustody, ' as
defined . . . does not include 'primary physical
custody' as a statutorily permissible physical custodial
arrangement, only joint or sole physical custody[.]"
Id. (citing Loumiet, 103 S.W.3d at 338).
That Court further observed that "[t]he conundrum the
foregoing terminology causes [our] courts cannot be
overstated." Id. at 367. Neither will the Court
be misled by reference to the section 452.375.5(1)
designation of a parent's address for mailing and
education purposes for a child as a substitute for arguing
about "primary or residential custody." See
Loumiet, 103 S.W.3d at 339-40. The ultimate issue in
this case is whether the parenting time awarded the parties
herein is in the best interest of the child. See id.
find Father's use of the term "split custody"
unhelpful in this context. It may be time to relegate the phrase
to the dustbin of archaic phraseology with other terms like
"primary custody" and "residential
custody." See id. at 336-38. These terms cling
to life and creep into parenting plans despite statutory
irrelevance and this Court's admonition to the contrary.
standard of review for a dissolution of marriage case
requires us to affirm the circuit court's judgment unless
there is no substantial evidence to support it, it is against
the weight of the evidence, or it erroneously declares or
applies the law. Murphy v. Carron, 536 S.W.2d 30, 32
(Mo. banc 1976). In assessing the sufficiency of the
evidence, we examine the evidence and its reasonable
inferences in the light most favorable to the judgment, and
we disregard all evidence and inferences to the contrary.
Durbin v. Durbin, 226 S.W.3d 876, 878 (Mo. App.
2007). The "credibility of witnesses and the weight to
be given their testimony is a matter for the trial court,
which is free to believe none, part, or all of the testimony
of any witness." Noland-Vance v. Vance, 321
S.W.3d 398, 402 (Mo. App. 2010). "We do not reweigh the
evidence, even if the evidence could have supported another
conclusion." Durbin, 226 S.W.3d at 879.
awarding substantial parenting time to both parents, the
circuit court necessarily found that both parents are fit and
proper persons to exercise joint legal and physical custody
with specific periods of custody of all the children to each
parent. See In re Marriage of Barton, 158 S.W.3d
879, 884 (Mo. App. 2005). If either parent was "unfit,
" the court would not have awarded that parent physical
custody of any of the children. See id.
correctly notes that "[a] child's interrelationship
and interaction with his or her siblings are relevant factors
to consider in custody decisions, " but "those
factors must be weighed and balanced in light of an
overriding concern for the best interests of the child."
See Noland-Vance, 321 S.W.3d at 419; §
452.375.2. Thus, Father acknowledges that a trial court may
order substantially different parenting time between the
parents of the various siblings if such an arrangement is in
the child's best interests, citing Noland-Vance,
321 S.W.3d at 418-20; Durbin, 226 S.W.3d at 880-81;
Barton, 158 S.W.3d at 884; Scott v.
Steelman, 953 S.W.2d ...